Smt. Ram Dhani and Others Vs Nek Ram Singh and Others

Janardan Sahai, J.@mdashThe suit giving rise to the present second appeal was filed by the plaintiffs Nekram and Nand Ram, the respondents in this appeal, for specific performance of a contract of sate dated 7.7.1983. in respect of a plot of land measuring 1.96 acres in village Khummarpur, Bansgopal the executant of the agreement, who was the sole defendant when the suit was filed, was a co-owner of the plot along with his brother Siddhgopal, subsequently impleaded in the suit as defendant No. 2. The suit was decreed by the trial court for specific performance of contract and the defendant was directed to execute a sale-deed in respect of his share in favour of the plaintiffs. During the pendency of the appeal, Bansgopal sold his half share to Dildar Ahmad Khan who was then impleaded as defendant No. 3. The appeal was dismissed. Aggrieved, the three defendants have preferred this appeal.

2. The plaint case in short before the trial court was that the defendant Bansgopal had executed the agreement to sell dated 7.7.1983 for a total consideration of Rs. 20,000, out of which Rs. 10,000 was paid by the laintiff in advance and the balance of Rs. 10,000 was payable within three years and the plaintiff could then get the sale-deed executed. The plaintiffs alleged that they requested the defendant Bansgopal to execute the sale-deed but when he did not do so, they sent a notice dated 18.3.1986, to him to execute the sale-deed. The defendant did give reply to the notice but his stand therein was false. The plaintiffs followed the defendant''s reply by another notice dated 19.6.1986, calling upon the defendant to come to the Registration Office on 4.7.1986 to execute the sale-deed. On 4.7.1986, according to the plaintiffs, they went to the Registration Office but defendant did not turn up. Specific averment has been made in the plaint that the plaintiffs were ever ready and willing to perform their part of the contract.

3. The suit was contested by Bansgopal on the ground that the alleged contract of sale was obtained by fraud. The defendant alleges that he was taken to tehsil Kayamganj for preparation of papers in respect of a loan, which he had taken from the plaintiffs, and in that connection, his signatures were obtained on blank papers upon which the alleged contract of sale was manufactured. It was denied that the plaintiffs ever requested the defendant to execute the sale-deed after taking the balance consideration. The service of notice dated 18.3.1986 was admitted but it was denied that any notice dated 19.6.1986 was received by the defendant. The averment regarding the plaintiffs'' readiness and willingness to perform their part of the contract was denied. Plea of Section 168A of the U. P. Zamindari Abolition and Land Reforms Act, (hereinafter referred to as the U.P.Z.A. and L.R. Act) was also taken.

4. The trial court did not believe the defedant''s case that the contract of sale was obtained by fraud and held that the transaction indeed was always intended to be one for sale. The plea of Section 168A of U.P.Z.A. and L.R. Act was not pressed before the trial court and as such was decided in plaintiffs'' favour.

5. In the appeal, an additional written statement was filed by the defendant Nos. 1 and 2, the co-owners. The main plea put forward by them was that Section 168A, U.P.Z.A. and L.R. Act operated as a bar to the sale and that on 27.2.1991 defendant No. 1 had sold his entire share in the plot to defendant No. 3 for valuable consideration and that Section 52 of the Transfer of Property Act was not applicable to the case. Written statement was filed by defendant No. 3, the subsequent purchaser, who claimed rights on the basis of sale-deed dated 27.2.1991 executed by Bansgopal in his favour during the pendency of the appeal. In his written statement, the third defendant substantially took the same pleas including that of fraud, which were put forward by the original defendant Bansgopal. The contract of sale for half part on the eastern side was challenged as void. Subsequently, an additional written statement was filed by him in which he put forward the plea of bar of Section 168A of U.P.Z.A. and L.R. Act. It was also alleged that he validly purchased the undivided share of Bansgopal and thus became the co-owner of the plot along with Siddhgopal, the second defendant, and that after the said purchase, the heirs of Bansgopal who had been substituted in the appeal on the death of their father had no rights left in the plot.

6. The appellate court affirmed the finding that the agreement to sell was not an act of fraud but had been validly executed. The plea of Section 168A, U.P.Z.A. and L.R. Act was also turned down. The appeal was dismissed.

7. Heard Shri Sankatha Rai, learned counsel for appellants and Shri S. N. Srivastava, learned counsel for the respondent-plaintiffs.

8. The appeal was admitted on two substantial questions of law.

(1) Whether the first appellate court was bound to frame specific issue on the pleas raised by the newly added party in the appeal and was also bound to record finding on those issues?

(2) Whether the courts below committed an error of law in decreeing the suit without framing any issue regarding Section 16(c) of the Specific Relief Act?

The parties'' counsel have addressed the Court only on these questions and no other question was raised before me at the hearing.

9. On the first question. Shri Sankatha Rai urged that the co-owner and the transferee having been impleaded as parties and having filed their respective written statements. It was incumbent upon the appellate court to have framed specific issues on the pleas raised by them.

10. It is urged by Shri Sankatha Rai that Bansgopal had no right to sell any specific portion of the disputed plot and the contract for sale of his half share in the eastern side was, therefore, invalid. In support of his contention, reliance has been placed upon the following decisions :

(1) Anand Dev Puri v. Gurfabal Singh 1998 RD 137.

(2) Day a Kishan v. Assistant Director Consolidation and Ors

11. What has been laid down in the decisions cited is that sale of a specific portion by a co-owner in an undivided plot is invalid though valid only to the extent the share of the co-owner. In Ram Kripal v. Abdul Wahid 1940 AWR 199, cited by Sri Rai relying upon Jomna v. Jhalliit was held that it is not permissible for any co-sharer to alienate to a third person, as his exclusive property, the portion he has been occupying by agreement with his co-sharers and the purchaser acquires no right. This case was considered in Daya Kishan v. Assistant Director Consolidation 1983 ALJ 11, a case in which after the preliminary decree in a partition suit, a co-sharer who received possession of particular plots in the qura proposed for allotment to him transferred the plots of his qura before the final decree was passed. It was held that the sale was valid only in respect of the share of the transferee in the plots and not for the whole of the plots.

12. In the contract of sale, there is a recital of a partition between the co-owners and allotment of the eastern portion to the share of Bansgopal Bansgopal executed the agreement in respect of his half share in the plot on the Eastern side. It transpired, according to the plaintiffs, that during the pendency of the present suit, a suit for partition u/s 176, U.P.Z.A. and L.R. Act was brought in collusively between the two brothers Bansgopal and Siddhgopal, in order to defeat the claim of the present plaintiffs. The plaint in this suit was then got amended to claim purchase of the share of Bansgopal in the plot without reference to any particular side of the plot. The suit has been decreed for the sale of the share of Bansgopal without reference to any specific portion and as such, the contention that Bansgopal has no right to sell the Eastern portion of the plot is misconceived and does not really arise. There is no decree against Siddhgopal nor any finding has been recorded against him and he is really not an aggrieved person. A co-tenant who claims adversely to the other co-tenant against whom the suit for specific performance of contract is instituted is not a necessary party according to the preponderance of judicial authority in the country. The reason behind this view is that u/s 19 of the Specific Relief Act the contract is enforceable only against a party to it and not against a stranger, be he a co-owner. The fact that the title of the vendee is disputed is alien to an adjudication in a suit for specific performance. It is not, however, necessary to devote much attention to the question as after the amendment in the plaint confining the claim to the share of Bansgopal without-reference to any portion of the plot and also looking into the terms in which the decree has been passed the question is of academic importance only. No prejudice has been caused to Siddhgopal by non-framing of issues on the pleas raised by him or by not giving him opportunity to adduce evidence as there is no decree against him.

13. The subsequent purchaser, Dildar Ahmad Khan, has obtained the sale-deed after the suit was decreed by the trial court and during the pendency of the appeal. It has been held by a Division Bench of this Court in Smt. Ram Peary and Others Vs. Gauri and Others, , that Section 52 of the Transfer of Property Act is not subject to Section 19(b) of the Specific Relief Act and as such, the sale in favour of Dildar Ahmad Khan, the subsequent purchaser, is hit by doctrine of Us pendens. The purpose of impleading the subsequent purchaser is that he can be made to join the original vendor in executing the sale-deed in favour of the plaintiff vide R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, . The Calcutta High Court in Muktakesi Dawn v. Haripoda Mazumdar AIR 1998 Cal 25 , upon which reliance was placed by Sri Rai, lays down that the Court may grant interim injunction restraining sale despite presence of Section 52 Transfer of Property Act. Otherwise the Court may in its discretion, if rights of the subsequent purchaser have intervened, not grant specific performance but be persuaded to grant damages to the plaintiff. While the conclusion that in a fit case, the Court may in a suit for specific performance grant an interim injunction cannot be doubted but the reason Just referred to, given in its support does not take into account the position of the law that in case of clash between a subsequent purchaser lis pendens and the party claiming under a prior contract of sale, the claims of the subsequent purchaser must give way. Because as held by the Division Bench of this Court, Section 52, Transfer of Property Act has primacy over Section 19(1)(b) of the Specific Relief Act, The matter is concluded by the decision of Supreme Court in Dhanna Singh and Others Vs. Baljinder Kaur and Others, , in which the Apex Court has held as follows :

"Apart from doctrine of lis pendens, u/s 52 of the Transfer of Property Act, the subsequent purchaser does not get any right to lead any evidence, as he stepped into the shoes of the first defendant."

14. The decision of the Supreme Court in Ram Avadh Acchatbar Dubey overruling Jugraj Singh''s case and holding that it is open to the subsequent purchaser to take the plea that the plaintiff was not ready and willing to perform his part is clearly distinguishable as the position of a purchaser lis pendens was not considered.

15. The answer to the first question is that the appellate court has committed no error in neither framing issues nor giving finding on the pleas raised by the subsequently added parties.

16. We may now consider the second question involved in this appeal regarding the requirement to frame an issue of plaintiffs'' readiness and willingness to perform their part of the contract.

17. In the Specific Relief Act, 1887, there was no statutory duty upon the plaintiff of either pleading or giving proof of his readiness and willingness to perform his part of the contract. In equity, however, there was the rule that one who seeks equity must do equity, a principle which was applied in all cases of specific performance of contract and even in the absence of any statutory requirement, it was held that pleading that the plaintiff was ready and willing to perform his part of the contract was mandatory and in case the plea was traversed, the plaintiff had further to give proof of his continued readiness and willingness from the date of the contract upto the date of the hearing of the suit - vide the Privy Council decision in Ardeshir H. Mama v. Flora Sassoon AIR 1928 PC 208 . Section 16(c) of the Specific Relief Act, 1963, has given statutory recognition to this requirement of pleading and proof. The requirement has been held to be mandatory vide Mahmood Khan and Another Vs. Ayub Khan and Others, and Suraj Singh and Another Vs. Sohan Lal and Others, .

18. However, it is to be seen whether it is still necessary for the plaintiff to prove by deposition his readiness and willingness even though the written statement does not traverse the plea set up in the plaint. In Mahmood Khan and Another Vs. Ayub Khan and Others, , it was held that even if the defendants had not raised any plea denying the plaintiff''s readiness and willingness and even if there was no issue upon that point, the mandate of the statutory requirement was that the plaintiff must aver and prove that he has been ready and willing to perform his part of the contract. In that case, the plaintiff had not made the required averment in the plaint and it was held that the suit was liable to fail for want of a cause of action, as mere proof of readiness and willingness in the evidence was not enough. The Court was not called upon to consider a situation where the plea of readiness and willingness was taken in the plaint but not traversed. In Suraj Singh and Another Vs. Sohan Lal and Others, , the case of Mahmood Khan (supra) was relied upon and it was held that the twin requirements of pleading and proof of readiness and willingness were mandatory and that even though the plea set up in the plaint has not been traversed, that would not relieve the Court from the necessity of framing an issue and giving a clear finding that the requirement had been complied with.

19. The law upon the point has been stated in Ardeshir H. Mama (supra) by the Privy Council and approved by the Supreme Court in Gomathinayagam Pillai and Others Vs. Pallaniswami Nadar, , in the following words :

"In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit."

Order VIII, Rule 5 (1). C.P.C. provides :

"Special dental.--(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability :

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."

20. The effect of Section 16(1)(c) of the Specific Relief Act read with Order VIII, Rule 5 (1), C.P.C. is that if the defendant does not deny the plea of readiness and willingness taken by the plaintiff, the averment would be deemed to have been admitted. The Court, however, has discretion to require the averment to be proved otherwise than by the admission. Cases in which the admission may be sufficient proof would be, for instance, where the plea is amply supported by documents mentioned in the plaint or annexed in the list filed along with it and not disputed by the defendant. No hard and fast rule can be laid down and the matter must be left to the discretion of the Court to be exercised according to the facts of each case. The burden of proof upon the plaintiff would certainly be lighter if the plea is not traversed and even if evidence is required in proof in such a case mere formal deposition would be enough. In Kirpal Singh Vs. Mst. Kartaro and Others, , the Court held that the while deciding the question of plaintiffs readiness and willingness, it would take into account the fact that in the written statement the denial was not specific.

21. The plea of readiness and willingness has been traversed in paras 9 and 10 of the written statement. The averment that plaintiff had made oral request to the defendant to execute the sale deed and sending of notice dated 19th June, 1986, for that purpose has been disputed. The plea having been traversed, the Court was required to frame an issue. It was for the plaintiff to give evidence in proof of his readiness and willingness to perform his part from the date of the contract upto the date of hearing. The Court was also required to give a finding upon the point. No issue was, however, framed nor any finding on the question recorded.

22. Shrl S. N. Srivastava, then submitted that the evidence on record on the point of readiness and willingness was one sided in favour of the plaintiffs, that the trial court has found that the plea was taken in the plaint and was also supported in the deposition of P.W. 1 that there was no cross-examination upon the point and in the absence of any attack to the finding before the lower appellate court, it was not necessary for it to consider that aspect. The trial court while deciding issues Nos. 1 and 2 which respectively relate to the execution of the agreement and fraud committed in obtaining it has no doubt taken notice of the plea and of the deposition of P.W. 1 in support but that is not a substitute for a finding such as is required by Suraj Singh (supra).

23. The requirement having been held to be mandatory, a specific issue and finding upon the point of readiness and willingness was necessary. The cases cited by Sri Srivastava for the proposition that if a finding is not challenged, it has to be accepted are, therefore, not applicable here and hence need no consideration. This answers the second question.

24. Section 103, C.P.C. enables the High Court to decide an issue which though essential for the decision of the appeal remained to be decided by the courts below, Sri Srivastava drew my attention to that provision and contended that the evidence on the record was sufficient and that the issue of readiness and willingness be decided in this appeal. He took support from the decision in Malkhan Singh Vs. Raghubir Singh, , where challenge to a decree of specific performance on the ground of want of pleading and proof of readiness and willingness was repelled. In second appeal as the High Court itself considered the plaint averments and the evidence and recorded the finding that the plea was taken and proved on facts. The distinguishing feature of that case is that the plea of readiness and willingness was not traversed there. The burden on the plaintiffs in such cases is lighter and it has only to be examined if at all that there is some evidence in support of the plea. If the plea has been traversed and if the issue is a contentious one, a thorough assessment of evidence of the parties would be required. In all cases of specific performance even if the plea is not traversed, it is desirable for the Court to frame an issue on the point of readiness and willingness of the plaintiff to perform his part of the contract to meet the statutory requirement u/s 16(1)(c) to prove this fact. But where the plea is denied, it becomes all the more necessary to do so. In the absence of an issue and a finding in the plaintiffs favour upon this point, the suit cannot be decreed. This proposition, however, is not to wash away the well known principle that if the parties are conscious of the case of each other and have led evidence, a finding will not be disturbed merely on the ground that an issue on the point had not been struck.

25. For exercising the discretionary powers u/s 103(a), C.P.C. it is essential that the courts below have omitted to decide an issue which was necessary for them to decide, that an issue was struck upon the point, or if not, the parties were conscious of the case of each other and had led evidence sufficient for the decision of the appeal. In Shri Bhagwan Sharma Vs. Smt. Bani Ghosh, , it was held that before exercising the powers u/s 103, the parties must be given notice and be called upon to submit paper books. In Suraj Singh (supra), it was held that it is desirable even where it is suggested that the evidence on record is sufficient that a question of fact must first be determined by a Court of fact. Deciding the point directly in second appeal would prejudice the case of one party or the other.

26. In the present case, the plea of readiness and willingness was traversed but no issue was struck upon the point. It has to be seen whether both the parties were conscious of the case of each other upon this point and whether evidence on the record was sufficient. Thereafter the evidence of the parties would have to be assessed. In this case, paper books have also not been prepared. In Ram Avadh (supra), where the plea challenging the plaintiffs readiness and willingness was not permitted to be taken the case was remanded by the Apex Court to the trial court. However, Sri Srivastava contends that there is sufficient evidence on the record. In any case, the lower appellate court has ample power to take evidence. Considering all the facts and circumstances, i am of the opinion that the case be remanded to the lower appellate court for a decision on the following issue :

"Whether plaintiffs were ready and willing to perform their part of the contract".

The remand is being made on this limited point. The lower appellate court will consider whether evidence on the record is sufficient for deciding the appeal. In case, it comes to the conclusion that the evidence is not sufficient, it may itself take the evidence of the parties upon the point. In view of the fact that the case is an old one, the lower appellate court may decide the appeal within a period of six months from the date of production of certified copy of this Judgment.

27. Accordingly, this second appeal is allowed. The judgment and decree passed by the lower appellate court is set aside and the case is remanded to the lower appellate court to decide the issue framed in this appeal in accordance with law within a period of six months from the date of production of a certified copy of this judgment.

28. The records of the courts below be transmitted to the lower appellate court forthwith.